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2017 DIGILAW 103 (ALL)

Shyam Prakash Singh v. State of U. P.

2017-01-09

DEVENDRA KUMAR UPADHYAYA

body2017
JUDGMENT Devendra Kumar Upadhyaya, J. This petition under Article 226 of the Constitution of India presents very disturbing facts and the sequence of events lead to conclude that in this matter there is something behind unveiled curtains which does not meet the eyes. 2. The petitioner, who is working on the the post of Junior Engineer (Electrical) in the Public Works Department, Lucknow, has assailed, by instituting these proceedings, the validity of the order dated 28.10.2016, passed by the Engineer-in-Chief, Public Works Department, Lucknow, whereby his representation preferred against the transfer order dated 27.06.2016 has been rejected. The petitioner has also challenged the transfer order dated 27.06.2016, whereby he has been transferred from Electrical Maintenance Division-I, Public Works Department, Lucknow to Technical Cell-15, Public Works Department, Lucknow. 3. Heard learned counsel for the petitioner, Shri A.M. Tripathi, Shri K.K. Shukla, learned Standing Counsel appearing for the State-respondents and Shri A.N. Verma, learned counsel representing the respondent no.5. 4. The records, which have been produced by the learned Standing Counsel, have also been perused by the Court. 5. The petitioner had earlier challenged the order dated 27.06.2016 before this Court by filing Writ Petition No.21873 (S/S) of 2016 primarily on the ground that since the year 2012, all efforts have been made by the respondents to hand over the entire charge of the petitioner to respondent no.5-Bihari Lal, a Junior Engineer in the department, at Bapu Bhawan, Lucknow. The petitioner in the said writ petition had averred that by means of the orders dated 04.12.2012, 24.10.2013 and 31.10.2014 charge of the petitioner was handed over one by one to the respondent no.5. It was also impressed upon the Court in the said writ petition that by means of another order dated 17.01.2015 the petitioner was left with the only charge relating to A.C. Plant. The petitioner had, thus, submitted before the Court while advancing the submissions in Writ Petition No.21873 (S/S) of 2016 that he was transferred not in public interest, neither in pursuance of the transfer policy embodied in the Government Order dated 11.05.2016 but only with a view to accommodate respondent no.5 and to give him entire charge of the post against which the petitioner was working. 6. 6. This Court taking into account the aforesaid assertions made on behalf of the petitioner without interfering in the transfer order dated 27.06.2016 disposed of the writ petition by means of the judgment and order dated 14.09.2016 directing therein consideration of the case of the petitioner afresh by the Engineer-in-Chief, Public Works Department, Lucknow. It was further provided in the order that if the petitioner had not been relieved of his charge under the order of transfer dated 27.06.2016 he shall be allowed to continue on the post of Junior Engineer (Electrical), Electrical Maintenance Division-I, Public Works Department, Lucknow. It is in compliance of the aforesaid judgment and order dated 14.09.2016 passed by this Court that the impugned order has been passed by the Engineer-in-Chief, Public Works Department, Lucknow on 28.10.2016 rejecting the claim of the petitioner and justifying the order of transfer dated 27.06.2016. The Engineer-in-Chief while deciding the matter relating to transfer of the petitioner and addressing his alleged grievances, has passed a detailed order meeting all the allegations contained in the representation preferred by the petitioner pursuant to the order of this Court dated 14.09.2016 wherein it has been found that the charge of the post of the petitioner by means of the orders dated 04.12.2012, 24.10.2013 and 31.10.2014 were given to the Junior Engineer concerned with a view to ensure that work of the said division is performed appropriately and efficiently. The Engineer-in-Chief has observed in the impugned order that the said charges were given to another Junior Engineer as per the administrative discretion of the Executive Engineer concerned and hence, there is no illegality in the same. The Engineer-in-Chief has further observed that the letter of the Personal Secretary of Hon'ble State Minister of Public Works Department was not taken into consideration while passing the transfer order dated 27.06.2016 for the reason that the said letter was written way back on 04.02.2015 and had the said letter been the basis of passing the transfer order, petitioner's transfer would have been effected in the transfer session 2015-16 whereas the transfer order dated 27.06.2016 has been passed only in the transfer session of 2016-17. It has also been observed by the Engineer-in-Chief that the petitioner in various capacities has been working since 01.01.1986 for a period of 30 years in Lucknow and has been holding the post of Junior Engineer in the Maintenance Division-I, Lucknow for the past seven years and thus, in terms of the policy of the State Government, he has been transferred in public interest. 7. A counter affidavit has been filed by the learned Standing Counsel reiterating the contents of the impugned order and further stating therein that the petitioner has been transferred in terms of the provisions of the transfer policy contained in the Government Order dated 11.05.2016. It has also been stated in the counter affidavit that on 29.07.2016 itself the petitioner was relieved by the Assistant Engineer concerned and the petitioner was directed to hand over the charge. The counter affidavit further states that on 14.09.2016 the Executive Engineer concerned passed another office memorandum stating therein that earlier the petitioner was directed to hand over the charge by means of the letters dated 28.07.2016, 01.09.2016 and 26.08.2016, however, he had not handed over the charge and thus, relieved the petitioner of this charge on 14.09.2016 itself. Thus, in pursuance of the transfer order dated 27.06.2016, despite several reminders to the petitioner to hand over his charge, he failed to hand over the same, which compelled the Executive Engineer to relieve him of his charge on 14.09.2016. The letters/orders dated 29.07.2016 and 14.09.2016 are on record. The petitioner was thus, relieved firstly on 27.07.2016 and then on 14.09.2016. 8. Learned counsel for the petitioner has, however, vehemently argued that the petitioner was relieved ex-parte on 14.09.2016 that is on the day on which this Court had passed an order disposing of the writ petition no.21873 (S/S) of 2016 whereby while directing the Engineer-in-Chief to look into the entire matter afresh. This Court had provided that if the petitioner had not been relieved of his charge under the order of transfer, he shall be allowed to continue on his post. Submission, thus, is that the State-respondents have not followed the order dated 14.09.2016 passed by this Court and have proceeded to relieve him ex-parte on the same day. This Court had provided that if the petitioner had not been relieved of his charge under the order of transfer, he shall be allowed to continue on his post. Submission, thus, is that the State-respondents have not followed the order dated 14.09.2016 passed by this Court and have proceeded to relieve him ex-parte on the same day. The aforesaid submission of learned counsel for the petitioner does not hold good for the reason that by means of the order dated 29.07.2016 itself while relieving the petitioner Assistant Engineer concerned had directed to the petitioner to hand over the charge to another Junior Engineer. 9. At this juncture, it must be remembered that when a public servant is transferred, he must comply with the order but if there is some genuine difficulty in proceeding on transfer, it is always open to such an employee to represent the authorities for modification of the order of transfer. In case the order of transfer is not modified or stayed, it is expected of the public servant to proceed on transfer and in absence of any stay of transfer order, the public servant cannot be said to have any justification to avoid or evade the transfer. In such a situation, if the government employee does not proceed on transfer, he exposes himself to disciplinary action under the relevant rules. 10. So far as the facts of the present case are concerned, the petitioner was relieved way back on 29.07.2016 under the order of Assistant Engineer and he was directed to hand over the charge. The said order was passed at a time when the transfer order dated 27.06.2016 was neither stayed nor modified nor cancelled by any higher authority or by Court. In such a circumstance, the conduct of the petitioner cannot be justified, specially keeping in view the fact that the petitioner failed to comply with the transfer order without any genuine cause which may be said to be available to him. The petitioner has not been resisting his transfer on any personal ground or for any genuine reason; rather his case has all along been that he has been transferred only to accommodate the respondent no.5. 11. The petitioner has not been resisting his transfer on any personal ground or for any genuine reason; rather his case has all along been that he has been transferred only to accommodate the respondent no.5. 11. The Court also cannot loose sight of the fact that by the order dated 27.06.2016, the petitioner was transferred within Lucknow from one division to the another and ordinarily he ought not have any difficulty in proceeding on transfer. 12. Even after disposal of the representation by means of the impugned order dated 28.10.2016 in compliance of the order passed by this Court on 14.09.2016, the petitioner did not proceed on transfer; rather he has all along been resisting the same on the sole ground that the transfer order has precipitated not on account of any public interest or in the exigencies of administration but only on account of mala fide reasons of accommodating the respondent no.5. 13. Transfer, as is well known in service jurisprudence, is an incidence of service. Transfer of a government servant appointed on a particular cadre of transferable post from one place to another is an issue which can be best adjudged by the superior officers,who can always exercise their administrative discretion in transferring and posting his subordinates. No doubt, government employee has no legal right for being posted at any particular place of his transfer. Transfer is a condition of service and the employee concerned does not have any choice. If transfer of an employee becomes necessary in public interest and in the exigencies of administration, the administrative authorities can always exercise their administrative discretion, judicial review of which may be very very limited as has been held by the apex Court in various pronouncements, including the judgment in the case of Rajendra Singh vs. State of U.P. and others; reported in [ 2009 (15) SCC 178 ], wherein it has been held that the Court should not interfere with the transfer order unless it is found to have been made in violation of any mandatory statutory rule or on the ground of mala fide. 14. Learned counsel for the petitioner has not pleaded that the instant case is an instance where the transfer of the petitioner has been effected in violation of any mandatory statutory rule. 14. Learned counsel for the petitioner has not pleaded that the instant case is an instance where the transfer of the petitioner has been effected in violation of any mandatory statutory rule. His sole submission is based on the ground that the transfer is mala fide which has been effected against the petitioner only for the reason that the State-respondents desired to accommodate the respondent no.5 of the charges. For establishing the aforesaid ground, learned counsel for the petitioner has taken the Court to various orders whereby the charge earlier held by the petitioner was given to respondent no.5. These orders are the orders 04.12.2012, 24.10.2013 and 31.10.2014. Learned counsel for the petitioner has lastly stated that by means of the order dated 17.01.2015 the petitioner was left with the charge only of the A.C. Plant. It is this trail of orders which is being relied upon by the learned counsel for the petitioner to impress upon the Court that the impugned order has been passed with mala fide reasons. To bring home the said ground, it has also been stated by the learned counsel for the petitioner that there are various Junior Engineers,who have put in more length of service at a particular unit or establishment or division, but they have not been transferred whereas the petitioner has been victimized and has been transferred only to facilitate the respondent no.5. 15. The aforesaid aspects of the matter were ordered to be examined by the Engineer-in-Chief, Public Works Department, Lucknow by means of the order dated 14.09.2016 passed by this court in the earlier writ petition filed by the petitioner. In compliance of the said order, the impugned order has been passed, wherein all these aspects have been taken into account by the Engineer-in-Chief while passing the impugned order, who has stated that the charge of the petitioner was earlier ordered to be given other Junior Engineer only in the exigencies of the work and taking into consideration of the interest administration. It is also noticeable that the petitioner has been posted in Lucknow for the last 30 years and in this particular division for the last seven years. 16. It need not be reiterated that no government employee has got any vested or otherwise right to be posted at a particular place. It is also noticeable that the petitioner has been posted in Lucknow for the last 30 years and in this particular division for the last seven years. 16. It need not be reiterated that no government employee has got any vested or otherwise right to be posted at a particular place. The writ petition does not disclose any personal difficulty or ground on which the petitioner has been resisting the transfer order. 17. During the course of the arguments, it has been contended by the learned Standing Counsel representing the State-respondents that the petitioner has been exerting pressure on the authorities time and again by resorting to various tactics which are not expected of a government servant. The record produced before the Court reveals that despite several reminders and there being no modification in the transfer order dated 27.06.2016, the petitioner did not hand over the charge as directed by the superior officers. It would become difficult for the super authorities to work and discharge their functions efficiently and in the interest of administration in case the subordinate officers keep on defying the directions issued by the superiors. Of course, in case of any genuine difficulty, the subordinate employee/officer is entitled to represent his case to the superiors, however, as to whether a government employee is to be transferred or retained will always be the outlook of the administrative authorities. No administration can function if a government servant insists that once appointed or posted in a particular place, he should continue in such place or position as long as desires. 18. Hon'ble Supreme Court in the case of Rajendra Singh (supra) has made very relevant observations in respect of transfer of an employee, which is quoted herein below: - "5. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. vs. Gobardhan Lal; (2004) 11 SCC 402 ]." 19. Learned counsel appearing for the petitioner has relied upon various judgments, which are; (i) Natthi Lal vs. Secretary, Ministry of Agriculture, U.P. Government, Lucknow and others, reported in [ (1995)2 UPLBEC 1115 ], (ii) Arvind Dattatraya Dhande vs. State of Maharashtra and others, reported in [ AIR 1997 SC 3067 ], (iii) Director of School Education, Madras and others vs. O. Karuppa Thevan and another, reported in [1994 Suppl (2) SCC 666], (iv) P.M. Srivastava vs. state of U.P., reported in 1995 (13) LCD 270 ], (v) Ram Baran vs. State of U.P. and others, reported in [2004 (22) LCD 1656], (vi) Lokesh Kumar vs. State of U.P. and others, reported in [ 1998 (16) LCD 46 , (vii) the judgment dated 12.10.2007, passed by a Division Bench of this Court in Special Appeal No.849 (S/B) of 2007, (viii) Wasif Akhtar vs. State of U.P. and others, reported in [ 2001 (19) LCD 1275 ] and various other judgments. All the aforesaid judgments deal with a situation where the transfer order was passed on some or the other mala fide ground. No doubt this Court can interfere in a situation where the transfer order is passed not in public interest or in the exigencies of administration but for mala fide reasons, however, as to whether the impugned order has emanated on account of mala fide or no is to be established by the person assailing his transfer. 20. As already observed above in this case, the petitioner has been posted herein Lucknow for the last 30 years. He has been posted in the Maintenance Division-I at Lucknow for the last seven years. 20. As already observed above in this case, the petitioner has been posted herein Lucknow for the last 30 years. He has been posted in the Maintenance Division-I at Lucknow for the last seven years. The ground of mala fide has been urged only on the basis of the orders dated 04.12.2012, 24.10.2013 and 31.10.2015 whereby the charge of the petitioner was given to another Junior Engineer, namely, respondent no.5. These orders, as has been clarified by the Engineer-in-Chief while passing the impugned order dated 28.10.2016 were passed looking to the exigencies of work and administration. Insistence of any government employee to discharge a particular function attach to a post is not the employee's preserve. The superior authorities are to distribute the work which the inferior officer/employees are expected to perform. 21. Having observed as above, I find no merit in the submissions which have been advanced by the learned counsel for the petitioner for assailing the transfer order dated 27.06.2016 as also the order dated 28.10.2016. 22. There is yet another aspect of the matter which the Court in the facts of the present case is called upon to address. Looking to the trail of orders, which have been passed from 2012 to 2014 stripping the petitioner off his charge one by one, this Court had directed earlier that the Engineer-in-chief will look into the matter and take decision afresh. The legal principle that no government employee can insist upon being given a particular charge relating to a place or post applies with equal force to the petitioner and the respondent no.5 as well. There appears to be a long drawn feud between the petitioner and respondent no.5 and both have been jealously vying to grab the charge of the post of Maintenance Division-I, Public Works Department, Lucknow since long. In these circumstance, the Court enquired from the learned Standing Counsel as to whether both, the petitioner as well as respondent no.5 can be transferred to different places outside Lucknow. Learned Standing Counsel, on the basis of instructions received from the officer present in the Court, has stated that there will be no difficulty in transferring both these persons and posting a third suitable person on the post in question at Maintenance Division-I, Public Works Department, Lucknow. The Court also feels that it would be in the larger interest of administration if both these employees are transferred outside Lucknow. The Court also feels that it would be in the larger interest of administration if both these employees are transferred outside Lucknow. 23. In view of above, I do not find any good ground to interfere in the orders which have been impugned in this petition. The writ petition is, thus, dismissed. 24. The respondents are further directed to pass fresh order of posting the petitioner as well as respondent no.5 else where outside the district, taking into account the exigencies of work and administration. The said orders in respect of both these employees shall be passed by appropriate authority within a fortnight from today.